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    Yale Law Journal: Volume 125, Number 1 - October 2015
    Yale Law Journal: Volume 125, Number 1 - October 2015
    Yale Law Journal: Volume 125, Number 1 - October 2015
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    Yale Law Journal: Volume 125, Number 1 - October 2015

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    About this ebook

    The contents of the October 2015 issue (Volume 125, Number 1) are:

    Articles: Against Immutability, by Jessica A. Clarke; and The President and Immigration Law Redux, by Adam B. Cox & Cristina M. Rodriguez

    Essay: Which Way To Nudge? Uncovering Preferences in the Behavioral Age, by Jacob Goldin

    Note: Saving 60(b)(5): The Future of Institutional Reform Litigation, by Mark Kelley

    Comment: Interbranch Removal and the Court of Federal Claims: "Agencies in Drag," by James Anglin Flynn
    Quality ebook formatting includes fully linked footnotes and an active Table of Contents (including linked Contents for all individual Articles, Notes, and Essays), proper Bluebook formatting, and active URLs in footnotes. This is the first issue of Volume 125, academic year 2015-16.

    LanguageEnglish
    PublisherQuid Pro, LLC
    Release dateNov 4, 2015
    ISBN9781610278102
    Yale Law Journal: Volume 125, Number 1 - October 2015
    Author

    Yale Law Journal

    The editors of The Yale Law Journal are a group of Yale Law School students, who also contribute Notes and Comments to the Journal’s content. The principal articles are written by leading legal scholars.

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      Book preview

      Yale Law Journal - Yale Law Journal

      THE YALE LAW JOURNAL

      VOLUME 125, NUMBER 1

      OCTOBER 2015

      Yale Law School

      New Haven, Connecticut

      Yale Law Journal

      Smashwords edition. Copyright © 2015 by The Yale Law Journal Company, Inc. All rights reserved. This work or parts of it may not be reproduced, copied or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the print publisher. Further information on copyright, permissions, and reprints is found at the Responses page.

      Published by the Yale Law Journal. Digitally published in ebook editions, for the Yale Law Journal, by Quid Pro Books, at Smashwords. Available in all major digital formats and at leading retailers and booksellers.

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      Cataloging (Volume 125, Number 1):

      ISBN 978-1-61027-810-2 (ePUB ebook format)

      CONTENTS

      ARTICLES

      Against Immutability

      Jessica A. Clarke     (125 YALE L.J. 2)

      The President and Immigration Law Redux

      Adam B. Cox & Cristina M. Rodríguez     (125 YALE L.J. 104)

      ESSAY

      Which Way To Nudge? Uncovering Preferences in the Behavioral Age

      Jacob Goldin     (125 YALE L.J. 226)

      NOTE

      Saving 60(b)(5): The Future of Institutional Reform Litigation

      Mark Kelley     (125 YALE L.J. 272)

      COMMENT

      Interbranch Removal and the Court of Federal Claims: Agencies in Drag

      James Anglin Flynn     (125 YALE L.J. 313)

      About the Yale Law Journal

      RESPONSES. The Yale Law Journal invites short papers responding to scholarship appearing in the Journal within the last year. Responses should be submitted to the Yale Law Journal Forum at http://www.yalelawjournal.org/submissions. We cannot guarantee that submitted responses will be published. Responses selected for publication will be edited with the cooperation of the author.

      The Yale Law Journal is published eight times a year (monthly from October through June, with the exception of December) by The Yale Law Journal Company, Inc. Editorial and general offices are located in the Sterling Law Building at Yale University. POSTMASTER: Send address changes to Yale Law Journal, P.O. Box 208215, New Haven, Connecticut 06520-8215.

      SUBSCRIPTIONS. A year subscription for Volume 125 is $55.00 payable in advance (please see our website for overseas shipping charges). Remittance must be made by U.S. dollar drafts payable at a U.S. bank. Unfortunately, we are not able to accept payments in cash or by credit card. Subscription requests received after the first issue of a volume has been printed will run for eight consecutive issues unless otherwise indicated by the subscriber. Subscription backstarting is not permitted to include prior volume years. Overseas delivery is not guaranteed.

      CLAIMS. Domestic claims for non-receipt of issues should be made within 90 days of the month of publication, and overseas claims within 180 days. Thereafter, the regular back issue rate will be charged for replacement. All subscriptions will be renewed automatically unless the subscriber provides timely notice of cancellation prior to the start of a new volume year. Address changes must be made at least two months before publication date. Please provide an old mailing label or the entire old address; the new address must include the ZIP code. Address changes or other requests for subscription information should be directed to the Business Administrator.

      SINGLE AND BACK ISSUES. Each issue of of the Journal can be purchased prepaid from The Yale Law Journal Company, Inc., for $25 (check must accompany order). For Connecticut deliveries, add 6% state sales tax. Remittance must be made by U.S. dollar drafts payable to a U.S. bank. Unfortunately, we are not able to accept payments in cash or credit card. To purchase back issues from Volumes 1-124, please contact William S. Hein & Company, Inc., 1285 Main Street, Buffalo, New York 14209, (800) 828-7571. Back issues can also be found in electronic format on HeinOnline (http://heinonline.org) and through Volume 110 on the Yale Law Journal’s website (http://www.yalelawjournal.org).

      MANUSCRIPTS. The Journal invites the submission of unsolicited Articles, Essays, Book Reviews, and Forum pieces. Manuscripts must be submitted online at http://www.yalelawjournal.org/submissions.

      COPYRIGHT. Copyright © 2015 by The Yale Law Journal Company, Inc. Requests for copyright permissions should be directed to Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, http://www.copyright.com.

      PRODUCTION. Citations in the Journal conform to The Bluebook: A Uniform System of Citation (20th ed. 2015), copyright by The Columbia Law Review Association, The Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal Company, Inc. The Journal is printed by Joe Christensen, Inc., in Lincoln, Nebraska. Periodicals postage paid at New Haven, Connecticut, and additional mailing offices. Publication number ISSN 0044-0094.

      INTERNET ADDRESS. The Yale Law Journal’s homepage is http://www.yalelawjournal.org.

      YALE LAW SCHOOL

      OFFICERS OF ADMINISTRATION

      Peter Salovey, A.B., M.A., Ph.D., President of the University

      Benjamin Polak, B.A., M.A., Ph.D., Provost of the University

      Robert C. Post, J.D., Ph.D., Dean

      Alvin Keith Klevorick, M.A., Ph.D., Deputy Dean

      Michael J. Wishnie, B.A., J.D., Deputy Dean for Experiential Education

      S. Blair Kauffman, J.D., LL.M., M.L.L., Law Librarian

      Ellen Cosgrove, B.A., J.D., Associate Dean

      Joseph M. Crosby, B.A., M.B.A., Associate Dean

      Toni Hahn Davis, J.D., LL.M., Associate Dean

      Mary Briese Matheron, B.S., Associate Dean

      Asha Rangappa, A.B., J.D., Associate Dean

      Mike K. Thompson, M.B.A., J.D., Associate Dean

      FACULTY EMERITI

      Guido Calabresi, LL.B., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Harlon Leigh Dalton, B.A., J.D., Professor Emeritus of Law

      Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law

      Jan Ginter Deutsch, LL.B., Ph.D., Walton Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Robert C. Ellickson, A.B., LL.B., Walter E. Meyer Professor Emeritus of Property and Urban Law and Professorial Lecturer in Law

      Owen M. Fiss, M.A., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History

      Michael J. Graetz, B.B.A., LL.B., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law

      Geoffrey Cornell Hazard, Jr., M.A., LL.B., Sterling Professor Emeritus of Law

      John H. Langbein, LL.B., Ph.D., Sterling Professor Emeritus of Law and Legal History and Professorial Lecturer in Law

      Carroll L. Lucht, M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Jerry L. Mashaw, LL.B., Ph.D., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Carol M. Rose, J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization and Professorial Lecturer in Law

      Peter H. Schuck, M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus of Law

      John G. Simon, LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Robert A. Solomon, B.A., J.D., Clinical Professor Emeritus of Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      FACULTY

      Bruce Ackerman, B.A., LL.B., Sterling Professor of Law and Political Science

      †    Muneer I. Ahmad, A.B., J.D., Clinical Professor of Law

      Richard Albert, B.C.L., LL.M., Visiting Professor of Law and Canadian Bicentennial Visiting Associate Professor of Political Science (fall term)

      †    Anne L. Alstott, A.B., J.D., Jacquin D. Bierman Professor in Taxation

      Akhil Reed Amar, B.A., J.D., Sterling Professor of Law

      Michelle Anderson, J.D., LL.M., Visiting Professor of Law and Peter and Patricia Gruber Fellow in Women’s Rights (spring term)

      Rick Antie, B.S., Ph.D., Professor (Adjunct) of Law (fall term)

      †    Ian Ayres, J.D., Ph.D., William K. Townsend Professor of Law

      Jack M. Balkin, J.D., Ph.D., Knight Professor of Constitutional Law and the First Amendment

      Aharon Barak, LL.M., Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Seyla Benhabib, B.A., Ph.D., Professor (Adjunct) of Law (fall term)

      Paul Bloom, B.A., Ph.D., Professor (Adjunct) of Law (spring term)

      Philip C. Bobbitt, J.D., Ph.D., Florence Rogatz Visiting Professor of Law (fall term)

      Lea Brilmayer, J.D., LL.M., Howard M. Holtzmann Professor of International Law

      Richard R.W. Brooks, Ph.D., J.D., Professor (Adjunct) of Law (fall term)

      Guido Calabresi, LL.B., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Steven G. Calabresi, B.A., J.D., Visiting Professor of Law (fall term)

      Stephen Lisle Carter, B.A., J.D., William Nelson Cromwell Professor of Law

      George Chauncey, M.A., Ph.D., Professor (Adjunct) of Law (fall term)

      Marian R. Chertow, M.P.P.M., Ph.D., Professor (Adjunct) of Law (fall term)

      Amy Chua, A.B., J.D., John M. Duff, Jr. Professor of Law

      Ellen Cosgrove, B.A., J.D., Associate Dean

      Joseph M. Crosby, B.A., M.B.A., Associate Dean

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Toni Hahn Davis, J.D., LL.M., Associate Dean

      Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law

      Jan Ginter Deutsch, LL.B., Ph.D., Walton Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Fiona M. Doherty, B.A., J.D., Clinical Associate Professor of Law

      Steven Barry Duke, J.D., LL.M., Professor of Law

      Robert C. Ellickson, A.B., LL.B., Walter E. Meyer Professor Emeritus of Property and Urban Law and Professorial Lecturer in Law

      Edwin Donald Elliott, B.A., J.D., Professor (Adjunct) of Law

      †    William N. Eskridge, Jr., M.A., J.D., John A. Garver Professor of Jurisprudence

      Daniel C. Esty, M.A., J.D., Hillhouse Professor of Environmental Law and Policy, School of Forestry & Environmental Studies; and Clinical Professor of Environmental Law and Policy, Law School

      Owen M. Fiss, M.A., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      †    James Forman, Jr., A.B., J.D., Clinical Professor of Law

      Emmanuel Gaillard, Ph.D., Visiting Professor of Law (spring term)

      Lech Garlicki, Doctorate in Legal Sciences, Habil. in Legal Sciences, Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Stanley J. Garstka, M.S.I.A., Ph.D., Professor (Adjunct) of Law (fall term)

      ‡    Heather K. Gerken, B.A., J.D., J. Skelly Wright Professor of Law

      Paul Gewirtz, B.A., J.D., Potter Stewart Professor of Constitutional Law

      Abbe R. Gluck, B.A., J.D., Professor of Law

      Julie Goldscheid, M.S.W., J.D., Visiting Professor of Law and Peter and Patricia Gruber Fellow in Women’s Rights (spring term)

      Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History

      Michael J. Graetz, B.B.A., LL.B., LL.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law (fall term)

      David Singh Grewal, J.D., Ph.D., Associate Professor of Law

      Dieter Grimm, LL.M., Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Mark Hall, B.A., J.D., Florence Rogatz Visiting Professor of Law (fall term)

      ‡    Henry B. Hansmann, J.D., Ph.D., Oscar M. Ruebhausen Professor of Law

      Robert D. Harrison, J.D., Ph.D., Lecturer in Legal Method

      Oona Hathaway, B.A., J.D., Gerard C. and Bernice Latrobe Smith Professor of International Law

      Marcia Johnson, B.A., Ph.D., Professor (Adjunct) of Law (fall term)

      †    Christine Jolls, J.D., Ph.D., Gordon Bradford Tweedy Professor of Law and Organization

      ‡    Dan M. Kahan, B.A., J.D., Elizabeth K. Dollard Professor of Law and Professor of Psychology

      Paul W. Kahn, J.D., Ph.D., Robert W. Winner Professor of Law and the Humanities

      Johanna Kalb, M.A., J.D., Visiting Associate Professor of Law

      Amy Kapczynski, M.A., J.D., Professor of Law

      S. Blair Kauffman, J.D., LL.M., M.L.L., Law Librarian and Professor of Law

      Alvin Keith Klevorick, M.A., Ph.D., Deputy Dean, John Thomas Smith Professor of Law, and Professor of Economics

      Harold Hongju Koh, M.A., J.D., Sterling Professor of International Law

      Issa Kohler-Hausmann, J.D., Ph.D., Associate Professor of Law and Associate Professor of Sociology

      Anthony Townsend Kronman, J.D., Ph.D., Sterling Professor of Law

      Douglas Kysar, B.A., J.D., Joseph M. Field ’55 Professor of Law

      John H. Langbein, LL.B., Ph.D., Sterling Professor Emeritus of Law and Legal History and Professorial Lecturer in Law

      ‡    Anika Singh Lemar, B.A., J.D., Clinical Associate Professor of Law

      ‡    Yair Listokin, Ph.D., J.D., Shibley Family Fund Professor of Law

      Carroll L. Lucht, M.S.W., J.D., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Jonathan R. Macey, A.B., J.D., Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law

      Daniel Markovits, D.Phil., J.D., Guido Calabresi Professor of Law

      Jerry Louis Mashaw, LL.B., Ph.D., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Mary Briese Matheron, B.S., Associate Dean

      †    Tracey L. Meares, B.S., J.D., Walton Hale Hamilton Professor of Law

      Noah Messing, B.A., J.D., Lecturer in the Practice of Law and Legal Writing

      Alice Miller, B.A., J.D., Associate Professor (Adjunct) of Law (spring term)

      John D. Morley, B.S., J.D., Associate Professor of Law

      Christina M. Mulligan, B.A., J.D., Visiting Associate Professor of Law (spring term)

      Andrew V. Papachristos, M.A., Ph.D., Professor (Adjunct) of Law (spring term)

      Jason Parkin, B.A., J.D., Florence Rogatz Visiting Clinical Associate Professor of Law

      Nicholas R. Parrillo, J.D., Ph.D., Professor of Law

      Jean Koh Peters, A.B., J.D., Sol Goldman Clinical Professor of Law

      Robert C. Post, J.D., Ph.D., Dean and Sol & Lillian Goldman Professor of Law

      J.L. Pottenger, Jr., A.B., J.D., Nathan Baker Clinical Professor of Law

      Claire Priest, J.D., Ph.D., Simeon E. Baldwin Professor of Law

      George L. Priest, B.A., J.D., Edward J. Phelps Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship

      Asha Rangappa, A.B., J.D., Associate Dean

      William Michael Reisman, LL.M., J.S.D., Myres S. McDougal Professor of International Law

      ‡    Judith Resnik, B.A., J.D., Arthur Liman Professor of Law

      †    Cristina Rodríguez, M.Litt., J.D., Leighton Homer Surbeck Professor of Law

      John E. Roemer, A.B., Ph.D., Professor (Adjunct) of Law (fall term)

      †    Roberta Romano, M.A., J.D., Sterling Professor of Law

      Carol M. Rose, J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization and Professorial Lecturer in Law (fall term)

      Susan Rose-Ackerman, B.A., Ph.D., Henry R. Luce Professor of Jurisprudence (Law School and Department of Political Science)

      Jed Rubenfeld, A.B., J.D., Robert R. Slaughter Professor of Law

      David E. Schizer, M.A., J.D., Florence Rogatz Visiting Professor of Law (spring term)

      David N. Schleicher, M.Sc., J.D., Associate Professor of Law

      Peter H. Schuck, M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus of Law

      Vicki Schultz, B.A., J.D., Ford Foundation Professor of Law and Social Sciences

      †    Alan Schwartz, B.S., LL.B., Sterling Professor of Law

      Ian Shapiro, J.D., Ph.D., Professor (Adjunct) of Law (fall term)

      †    Scott J. Shapiro, J.D., Ph.D., Charles F. Southmayd Professor of Law and Professor of Philosophy

      Robert J. Shiller, B.A., Ph.D., Professor (Adjunct) of Law (fall term)

      Reva Siegel, M.Phil., J.D., Nicholas deB. Katzenbach Professor of Law

      James J. Silk, M.A., J.D., Clinical Professor of Law

      John G. Simon, LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Lawrence M. Solan, Ph.D., J.D., Sidley Austin—Robert D. McLean Visiting Professor of Law (spring term)

      Edward Stein, Ph.D., J.D., Maurice R. Greenberg Visiting Professor of Law (spring term)

      ‡    Kate Stith, M.P.P., J.D., Lafayette S. Foster Professor of Law

      Alec Stone Sweet, M.A., Ph.D., Leitner Professor of International Law, Politics, and International Studies (fall term)

      Mike K. Thompson, M.B.A., J.D., Associate Dean

      Tom R. Tyler, M.A., Ph.D., Macklin Fleming Professor of Law and Professor of Psychology

      Patrick Weil, M.B.A., Ph.D., Visiting Professor of Law and Oscar M. Ruebhausen Distinguished Senior Fellow (fall term)

      James Q. Whitman, J.D., Ph.D., Ford Foundation Professor of Comparative and Foreign Law

      ‡    Michael J. Wishnie, B.A., J.D., Deputy Dean for Experiential Education, William O. Douglas Clinical Professor of Law, and Director, Jerome N. Frank Legal Services Organization

      ‡    John Fabian Witt, J.D., Ph.D., Allen H. Duffy Class of 1960 Professor of Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      *    Gideon Yaffe, A.B., Ph.D., Professor of Law and Professor of Philosophy

      Taisu Zhang, J.D., Ph.D., Irving S. Ribicoff Visiting Associate Professor of Law (fall term)

      Howard V. Zonana, B.A., M.D., Professor of Psychiatry and Clinical Professor (Adjunct) of Law (spring term)

      *    On leave of absence, 2015–2016.

      †    On leave of absence, fall term, 2015.

      ‡    On leave of absence, spring term, 2016.

      LECTURERS IN LAW

      Sarah Baumgartel, A.B., J.D.

      Emily Bazelon, B.A., J.D.

      Brian Logan Beirne, B.S., J.D.

      Tessa Bialek, B.A., J.D.

      Jeremy L. Daum, B.S., J.D.

      Gregg Gonsalves, B.S.

      Linda Greenhouse, B.A., M.S.L., Joseph Goldstein Lecturer in Law

      Su Lin Han, M.A., J.D.

      Stephen Latham, J.D., Ph.D.

      James Ponet, M.A., D.D.

      Megan Quattlebaum, B.A., J.D.

      Michael Ulrich, J.D., M.P.H.

      Graham Webster, B.S., A.M.

      Robert D. Williams, B.A., J.D.

      VISITING LECTURERS IN LAW

      Guillermo Aguilar-Alvarez, Lic. en Derecho (J.D.)

      Catherine Ashton, B.Sc.

      Yas Banifatemi, Ph.D., LL.M.

      Mark Barnes, J.D., LL.M.

      Stephen B. Bright, B.A., J.D., Harvey Karp Visiting Lecturer in Law

      Lincoln Caplan, B.A., J.D., Truman Capote Visiting Lecturer in Law

      Timothy Collins, B.A., M.B.A.

      Victoria A. Cundiff, B.A., J.D.

      Brian T. Daly, M.A., J.D.

      Eugene R. Fidell, B.A., LL.B., Florence Rogatz Visiting Lecturer in Law

      Gregory Fleming, B.A., J.D.

      Lawrence J. Fox, B.A., J.D., George W. and Sadella D. Crawford Visiting Lecturer in Law

      Lee Gelernt, M.Sc., J.D.

      Peter T. Grossi, Jr., M.A., J.D.

      Menaka Guruswamy, LL.M., D.Phil., Peter and Patricia Gruber Fellow in Global Justice

      David L. Harfst, B.A., J.D.

      Frank Iacobucci, LL.B., LL.M., Gruber Global Constitutionalism Fellow

      Jeffrey A. Meyer, B.A., J.D.

      Andrew J. Pincus, B.A., J.D.

      Stephen Preston, B.A., J.D., Oscar M. Ruebhausen Distinguished Senior Fellow

      Richard Ravitch, B.A., LL.B.

      Eric S. Robinson, M.B.A., J.D.

      Charles A. Rothfeld, A.B., J.D.

      John M. Samuels, J.D., LL.M., George W. and Sadella D. Crawford Visiting Lecturer in Law

      Paul Schwaber, M.A., Ph.D.

      Michael S. Solender, B.A., J.D.

      Jacob J. Sullivan, M.Phil., J.D., Oscar M. Ruebhausen Distinguished Senior Fellow in National Security

      Robert Sussman, B.A., LL.D.

      Stefan R. Underhill, B.A., J.D.

      John M. Walker, Jr., B.A., J.D., George W. and Sadella D. Crawford Visiting Lecturer in Law

      Megan A. Wulff, M.P.H., J.D.

      David M. Zornow, B.A., J.D.

      Against Immutability

      JESSICA A. CLARKE

      [125 YALE L.J. 2 (2015)]

      ABSTRACT. Courts often hold that antidiscrimination law protects immutable characteristics, like sex and race. In a series of recent cases, gay rights advocates have persuaded courts to expand the concept of immutability to include not just those traits an individual cannot change, but also those considered too important for anyone to be asked to change. Sexual orientation and religion are paradigmatic examples. This Article critically examines this new concept of immutability, asking whether it is fundamentally different from the old one and how it might apply to characteristics on the borders of employment discrimination law’s protection, such as obesity, pregnancy, and criminal records. It argues that the new immutability does not avoid the old version’s troublesome judgments about which traits are morally blameworthy and introduces new difficulties by requiring problematic judgments about which traits are important. Ultimately, immutability considerations of both the old and new varieties distract from the aim of employment discrimination law: targeting unreasonable and systemic forms of bias.

      AUTHOR. Associate Professor and Vance Opperman Research Scholar, University of Minnesota Law School. I am grateful to Bradley Areheart, Stephen Befort, Ann Burkhart, June Carbone, Mary Anne Case, Carol Chomsky, Antony Duff, Elizabeth Emens, Allan Erbsen, Joseph Fishkin, Michele Goodwin, Jill Hasday, Kristin Hickman, Claire Hill, Neha Jain, Erin Keyes, Heidi Kitrosser, Bert Kritzer, Nancy Levit, Brett McDonnell, William McGeveran, Isabel Medina, Stephen Meili, Amy Monahan, Perry Moriearty, Rebecca Morrow, JaneAnne Murray, David Noll, Shu-Yi Oei, Hari Osofsky, Stephen Rich, Christopher Roberts, Jessica Roberts, Veronica Root, Vicki Schultz, Daniel Schwarcz, Francis Shen, and participants at workshops at the University of Minnesota Law School, Loyola University New Orleans College of Law, the Vulnerability and the Human Condition Initiative, the Colloquium on Scholarship in Employment and Labor Law, and the Law and Society Annual Meeting for helpful feedback on previous drafts. My thanks to Cresston Gackle, Soren Lagaard, Inga Nelson, Katharine Saphner, Leah Tabbert, and the University of Minnesota Law Library for superb research assistance.

      ARTICLE CONTENTS

      INTRODUCTION

      I. THE REVISED THEORY OF IMMUTABILITY

      A. Two Concepts of Immutability

      1. Protection from Chance

      2. Protection for Choice

      B. The Synthesis

      C. Potential for Migration

      II. OBJECTIONS TO THE REVISED IMMUTABILITY

      A. Masking Moralizing Judgments

      B. Excluding Inessential and Stigmatized Traits

      C. Reinforcing Stereotypes

      D. Creating Line-Drawing Problems

      E. Limiting Rights to Privacy and Recognition

      F. Inviting Conflict

      III. APPLYING THE REVISED IMMUTABILITY TO NEW CONTEXTS

      A. Weight

      B. Pregnancy

      C. Criminal Records

      IV. BEYOND IMMUTABILITY

      A. Universalizing a Reasonable Relationship Requirement?

      B. Targeting Systemic Biases

      CONCLUSION

      INTRODUCTION

      Why is it illegal to discriminate on the basis of certain traits, like race or sex, but not others, like experience or beauty? One answer that has been offered in the context of the constitutional guarantee of equal protection is that certain human traits are immutable, meaning they were not chosen. This concept has long endured the scholarly criticism that it is both over- and underinclusive.¹ For example, it is permissible to discriminate on the basis of intelligence, which some say is innate, but not religion, which some say can be changed. In response to the argument that sexual orientation might be changed and is therefore undeserving of protection, gay rights advocates have persuaded many courts, perhaps even the Supreme Court, to adopt a different understanding of immutable characteristics.² Many courts now ask not whether a characteristic is strictly unchangeable, but whether the characteristic is a core trait or condition that one cannot or should not be required to abandon.³ Or, as another judge put it, ‘immutability’ may describe those traits that are so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change them, regardless of how easy that change might be physically.⁴

      The success of the revised version of immutability in the courts has given new life to a concept once thought dead and led scholars to apply the insight to other identities or traits that are not currently protected by antidiscrimination law.⁵ Scholars have been optimistic about the so-called new immutability⁶ for its potential to expand those aspects of identity covered by antidiscrimination law.⁷

      This Article offers the first sustained challenge to the new immutability.⁸ Despite the extensive attention the theory has received in judicial opinions and legal scholarship,⁹ no work has critically considered its broader implications for the development of antidiscrimination law. The evolution of immutability has important implications for antidiscrimination doctrine, as well as debates among the public, legislatures, and employers over whether to prohibit discrimination on the basis of various traits and identities. To assess the theory’s potential and limits, this Article examines how arguments based in the revised version of immutability might play out with respect to characteristics on the borders of employment discrimination law’s protection. It concludes that, while the new immutability has had success in constitutional litigation for LGBT rights, it is a questionable strategy for reconceptualizing the broader project of equality law. As a normative matter, the new immutability obscures critical questions about why some characteristics ought to be treated equally, offering only the empty assertion that they are fundamental to personhood. Rather than replacing the old theory of immutability, which entails problematic moral judgments about individual responsibility, the new version reinvigorates the ideology behind the old. As a strategic matter, the new immutability may backfire for groups advocating that new forms of bias be prohibited, because it creates line-drawing problems and justifies only limited forms of protection.

      This Article is concerned with the migration of the new immutability from equal protection cases to new contexts, particularly the various statutes prohibiting employment discrimination.¹⁰ While this Article suggests reasons to be skeptical of the new immutability in general, its intervention is not focused on equal protection doctrine or the same-sex marriage cases. Instead, it focuses on employment discrimination, not only because of the economic importance and profound social significance of the workplace,¹¹ but also because employment discrimination law has shown remarkable willingness to extend legal protections to new traits.¹²

      As the role of immutability in the Supreme Court’s equal protection jurisprudence has diminished, the concept has continued to have a strong influence and enduring explanatory force in employment discrimination law.¹³ While immutability is but one among many factors in equal protection doctrine,¹⁴ it often plays a determinative role in employment discrimination disputes. Courts use the old concept of immutability to limit the reach of employment discrimination statutes, narrowly construing what counts as discrimination based on characteristics such as race, sex, and disability.¹⁵ The old immutability’s pervasive influence on employment discrimination law suggests that the new version might have obvious applications there as well.¹⁶ This Article considers how the new immutability might play out in controversies over whether the law forbids employment discrimination based on obesity,¹⁷ pregnancy,¹⁸ and criminal records.¹⁹ Despite plausible statutory arguments for covering these types of discrimination, courts often refuse to extend protection.²⁰

      In these contexts, the old immutability’s argument that these traits were chosen lies at the heart of courts’ refusals to extend familiar forms of antidiscrimination protection.²¹ The old immutability assumed that certain traits, like race and sex, were not blameworthy on account of being accidents of birth.²² The corollary is that traits for which an individual is accountable, in some sense, are appropriate bases for discrimination.²³ This reasoning may be premised on the moral intuition that discrimination against those who are blameworthy is fair. Or it may rest on the unstated assumption that the law should create incentives for good (or efficient) behavior by allowing discrimination on the basis of certain bad (or costly) choices. For instance, discrimination based on weight often goes unredressed by the law because obesity is commonly thought to be a mutable trait that may be prevented or ameliorated through adjustments to lifestyle and diet.²⁴ Judges may refuse to require that employers accommodate pregnancy because they believe that women who make private reproductive choices ought to bear the costs.²⁵ Employment discrimination on the basis of criminal records is thought to be fair as a collateral consequence of conviction.²⁶ The judgments underlying these views are often harsh, intrusive, and stigmatizing. Yet these moral and economic judgments lie below the surface of policy and legal doctrine and are rarely interrogated or theorized. Is obesity more morally blameworthy than heart disease, which is protected from discrimination despite having behavioral components? Should pregnant women alone bear the costs of pregnancy? Should those with criminal records be shunned from all employment opportunities?²⁷

      The new immutability is no better than the old on these questions. It fails to provide a theoretically satisfying basis for understanding which characteristics deserve protection and invites normatively problematic judgments that are at odds with the purposes of antidiscrimination law. While the old immutability assumed that certain traits might be blameworthy because they were chosen, the new immutability’s appeal to personal identity masks underlying moral assessments about which traits, while entailing some degree of choice, ought not be blameworthy.²⁸ These estimations may be unfair and irrelevant to employment. But by softening the edges of immutability theory to render it more appealing, the new immutability shields problematic judgments from scrutiny. Moreover, the new immutability’s focus on valued traits leaves out many stigmatized identities—identities that might have the strongest claims to protection precisely because judgments based on them are superficial and perpetuate systemic subordination.²⁹ For example, many people would dispute that weight is a central part of identity, and most people would prefer to change their weight if they could.³⁰ (And many would dispute that even sexuality, sex, and race are, or ought to be, central to personhood.³¹) Even worse, to argue a trait is fundamental to personality is to bolster the argument that it cannot change.³² The suggestion that criminal records are central to personality would lend support to employer beliefs that automatic exclusion of all those with criminal records will help avoid workplace crime.³³ In this way, the new immutability reinforces stereotypes of the sort that antidiscrimination law is intended to disrupt.

      Nor does the new immutability clear a path toward legal protection for new characteristics. The new immutability protects traits that are fundamental to a person’s identity.³⁴ But defining what makes a trait fundamental is not easy, giving rise to judicial anxiety that protecting new identities might lead down a slippery slope to protecting all variations in personality.³⁵ For example, judicial opinions on whether obesity is a protected disability demonstrate that courts are likely to resist extending protection for weight if the question is framed as a right to personality, because, these courts reason, every aspect of an individual’s appearance might be said to be central to personality.³⁶ Additionally, the protection offered by the new immutability may be sparse. The new immutability draws on the ideas of liberty and privacy, but protections for liberty and privacy are often limited to rights against state interference, rather than the full set of antidiscrimination remedies.³⁷ Finally, the new immutability invites intractable conflicts among groups asserting that certain choices are fundamental to their identities, such as between women seeking insurance coverage for contraception and employers whose religious beliefs do not countenance nonprocreative sex.³⁸

      While the new immutability may have been a useful doctrinal workaround for courts seeking to expand equal protection to sexual orientation, it is not a fruitful way to reimagine the law of equality in every context. Asking whether a characteristic is immutable, in either the new or old sense, focuses attention on the victims of discrimination and their blameworthy or costly choices, rather than the systemic effects of biases that are not required for the workplace to function. Immutability is a poor fit for employment discrimination law because it measures a person in the abstract, not that person’s qualifications for a particular job.³⁹ It also fails to call attention to how certain biases, when compounded, can result in caste-like social structures, leading to wholesale disadvantages or constrained opportunities based on identity.⁴⁰

      This Article proceeds in four parts. Part I describes the revised theory of immutability, discussing its origins in equal protection jurisprudence, its evolution in recent gay rights cases, and its emergence in employment discrimination law. Part II raises several normative and tactical objections to the revised immutability. It argues that even when revised, immutability is a harsh and intrusive moral theory. The new immutability’s protections for personhood exclude the most stigmatized, and its underlying premises reinforce stereotypes. Practically, the new immutability fails to give courts a principled basis for distinguishing between those traits that deserve protection and those that do not. It cannot justify transformative interventions into discriminatory social practices, and it invites conflicting equality claims. Part III applies these objections to current controversies in employment discrimination law. It discusses how the old immutability limits the law’s reach in the weight, pregnancy, and ex-offender discrimination contexts, and how the new immutability also fails to capture the wrong of these forms of discrimination. Part IV analyzes two alternatives to immutability arguments in the employment discrimination sphere: specifically, universal approaches that seek to enhance fairness for all workers, and targeted approaches that address systemic and superficial barriers to opportunity. It argues for targeted, incremental expansion of employment discrimination law, along with explicit scrutiny of the moral judgments behind immutability arguments of any stripe.

      I. THE REVISED THEORY OF IMMUTABILITY

      This Part discusses the original reasoning behind the immutability factor in equal protection doctrine, describes objections to that theory, and explains how the immutability factor has been transformed by lower courts in gay rights cases. This Article’s primary intervention, however, is not aimed at equal protection doctrine. Rather, this Article aims to demonstrate problems with the theory of immutability as a general test of what traits ought to be protected against discrimination, by looking at its applications in a specific context: employment discrimination law. It examines the equal protection cases to excavate the justifications for the assumption that immutable traits deserve protection, to connect those arguments to moral theories about egalitarianism, and to critique those arguments as applied to specific controversies in employment discrimination law. While this analysis may also suggest directions for constitutional law, this Article leaves those questions for another day. This Part will describe the revised immutability and how it attempts to address the principal objections to the old.

      A. Two Concepts of Immutability

      1. Protection from Chance

      This Part will discuss the old concept of immutability as chance, luck, or an accident of birth, as that idea arose in the Supreme Court’s equal protection jurisprudence. Other scholarly treatments of this subject have examined immutable traits defined as those characteristics that cannot be changed.⁴¹ This account examines another definition of immutable traits: characteristics for which an individual is not responsible. It will then connect that concept of immutability with the moral theories of egalitarianism that might support it, an exercise that reveals a number of objections to the old immutability. This Part will discuss those objections and conclude by describing the demise of the old immutability in Supreme Court jurisprudence.

      To begin, the Supreme Court has mentioned immutability as one of several factors that might be relevant to the question of whether a legislative classification based on a particular trait deserves heightened scrutiny by the courts.⁴² For instance, the Court has referred to immutability alongside visibility—whether a group exhibit[s] obvious . . . or distinguishing characteristics that define [it] as a discrete group.⁴³ The Court has considered other independent factors as well, including whether the class has experienced a ‘history of purposeful unequal treatment,’⁴⁴ whether it has been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of [its] abilities,⁴⁵ and whether it is in need of extraordinary protection from the majoritarian political process.⁴⁶

      The Supreme Court has referred to immutable traits simply as those that their possessors are powerless to escape or set aside.⁴⁷ But the concept of immutability is deeply rooted in notions of individual responsibility, referring not just to traits that cannot be changed, but also traits that were never chosen.⁴⁸ The term immutable characteristic first appears in the Supreme Court’s equal protection jurisprudence in Frontiero v. Richardson, a case striking down policies that discriminated on the basis of sex by providing more benefits to the wives of male military servicemembers than to the husbands of female servicemembers.⁴⁹ A plurality of the Court reasoned:

      [S]ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate the basic concept of our system that legal burdens should bear some relationship to individual responsibility . . . .⁵⁰

      To support this conclusion, the Frontiero plurality cited Weber v. Aetna Casualty & Surety Co., a case with facts that starkly illustrate the unfairness of accidents of birth.⁵¹ In Weber, death benefits under a workers’ compensation scheme had been denied to a deceased man’s children because those children were illegitimate.⁵² The Court held:

      The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual—as well as an unjust—way of deterring the parent.⁵³

      Immutability is therefore not confined to biological traits; as this legitimacy example demonstrates, social categories too may be assigned at birth.⁵⁴

      To be sure, the Court has not held that immutability is necessary⁵⁵ or sufficient⁵⁶ to turn a classification suspect. But even when the Court has refused to hold that a group with an immutable characteristic is a suspect class, it has been solicitous in its application of rational basis review toward the rights of those deemed innocent.⁵⁷ In Plyler v. Doe, the Court struck down a Texas statute excluding undocumented immigrant children from public education.⁵⁸ While the Court acknowledged that undocumented status is not an absolutely immutable characteristic since it is the product of conscious, indeed unlawful, action, it nevertheless concluded that the law in question imposes its discriminatory burden on the basis of a legal characteristic over which children can have little control.⁵⁹ This type of unfairness suggests the kind of ‘class or caste’ treatment that the Fourteenth Amendment was designed to abolish.⁶⁰ In City of Cleburne v. Cleburne Living Center, the Court confronted a Texas city’s ordinance denying a permit for the operation of a group home for the mentally retarded.⁶¹ The Court held that the group did not have suspect class status, but went on to quote John Hart Ely: Surely one has to feel sorry for a person disabled by something he or she can’t do anything about . . . .⁶² The Court struck down the ordinance.⁶³

      Immutable characteristics, defined as accidents of birth, are suspect to the Court because they bear no relationship to individual responsibility.⁶⁴ As a practical matter, the law is unlikely to deter private conduct by discriminating on the basis of accidents of birth because their bearers did not choose, or may be powerless to change, these immutable traits.⁶⁵ The term accident, then, is used in the moral sense, as the opposite of a matter for which one is accountable.⁶⁶

      This moral concept has powerful intuitive appeal. It is linked to notions of childhood innocence, eliciting empathy for those who were blameless in their misfortunes and evoking disdain for those who obtained their privilege without merit. The phrase accident of birth has a long philosophical pedigree, and was an important theme in the writing of John Stuart Mill on sex and race equality in the nineteenth century.⁶⁷ Mill wrote:

      If it be said that . . . virtue is itself the greatest good and vice the greatest evil, then these at least ought to be dispensed to all according to what they have done to deserve them; instead of which, every kind of moral depravity is entailed upon multitudes by the fatality of birth; through the fault of their parents, of society, or of uncontrollable circumstances, certainly through no fault of their own.⁶⁸

      More recent philosophical work has developed this intuition—that individuals should not be responsible for chance occurrences—into a theory of distributive justice called luck egalitarianism.⁶⁹ An extreme version of this theory would justify widespread redistribution.⁷⁰ A more limited version undergirds the notion of immutability operative in equal protection doctrine—that the Constitution calls for scrutiny of government classifications that burden those whose fault is only in their stars.⁷¹

      Luck egalitarianism is subject to a number of criticisms that might also be applied to the use of immutability as a criterion for antidiscrimination protection. These include problems distinguishing between chance and choice, as well as the theory’s harshness, its intrusiveness, and its stigmatizing effects.

      Problems Distinguishing Between Chance and Choice. First, critics argue that luck egalitarianism rests on a thin notion of choice, as distinguished from chance. Luck egalitarians struggle to draw a principled line between merit and luck: talents, aptitudes, and even the motivation to work hard may be just as much accidents of birth as race or sex.⁷² One need not believe free will is an illusion to agree that what may seem a free choice from a privileged perspective may seem predetermined by socioeconomic circumstances from a disadvantaged one. What appears merit may be luck, as privileged families transmit myriad advantages to their children.⁷³ And the irresponsible choices on which luck egalitarians would rest moral responsibility may not, upon closer examination, turn out to be informed, voluntary, uncoerced, and deliberated upon.⁷⁴ Moreover, there are good reasons to question impulses to assign individual agency for certain traits but not others. Social science research demonstrates spontaneous blame validation effects in which observers tend to over-ascribe volition and causation to individuals they have already implicitly judged as morally culpable.⁷⁵

      Harshness. A second criticism is that luck egalitarianism is harsh. On a pure version of the theory, an uninsured driver who is at fault for an accident should not be granted emergency medical assistance.⁷⁶ If the driver survives and is disabled, society has no obligation to accommodate her disability.⁷⁷ The theory distinguishes between the deserving and the undeserving disadvantaged, and abandons the latter, even if her circumstances are catastrophic.⁷⁸ It is not concerned with providing second chances, opportunities to correct mistakes, or paths to redemption.

      It is no answer to these criticisms to say that some traits, like intelligence, are often relevant to legitimate purposes while others, like race, are usually not. As Ely put it: At that point there’s not much left of the immutability theory, is there?⁷⁹ Equal protection jurisprudence generally asks the question of a trait’s relationship to a governmental objective only after deciding the extent to which the classification is suspect and deserving of special scrutiny.⁸⁰ Likewise, employment discrimination law generally asks whether a trait was related to the job, but this inquiry is only necessary if the plaintiff has shown that the employer discriminated on some prohibited basis.⁸¹ The relevance of the trait to a particular purpose does all the work in the analysis, and immutability has no bearing, unless we imagine that irrelevant traits are more suspect when they are immutable, and less suspect when they are mutable. But to endorse the idea that the state might discriminate on the basis of irrelevant traits just because they are mutable is to justify all forms of state-sponsored cultural conformity and assimilationism.⁸² Thus, immutability arguments allow those in power to require stifling conformity to conventional norms.

      Intrusiveness. This observation points to a third objection to luck egalitarianism: intrusiveness. Luck egalitarianism requires moralizing judgments of individual choices that interfere[] with citizens’ privacy and liberty.⁸³ [I]n order to lay a claim to some important benefit, people are forced to obey other people’s judgments of what uses they should have made of their opportunities . . . .⁸⁴ This intrusiveness objection resonates with the concerns of scholars critical of immutability as a forward-looking concept (as inability to change), rather than a backward-looking one (as lack of responsibility). Kenji Yoshino has argued that the immutability factor reflects an assimilationist bias, allowing government policies to create incentives for those who can change or conceal their defining trait to conform to mainstream expectations.⁸⁵ According to Yoshino, one problem with the immutability factor is that it transforms the "descriptive claim that a group can assimilate . . . into the prescriptive claim that it should assimilate without much intervening investigation by the courts into the legitimacy of the legislation.⁸⁶ For instance, Jews generally can change or conceal their religion, while blacks generally cannot change or conceal their race. This surely does not make anti-Semitic legislation more legitimate than racist legislation."⁸⁷ This example demonstrates how immutability arguments deflect attention from questions about the extent to which religious coercion is a legitimate pursuit for governments or employers. Likewise, immutability arguments focused on past responsibility deflect attention from questions about whether those in power have legitmate reasons for imposing moralizing judgments on citizens or employees.

      Stigma. A fourth criticism responds to the argument that law might appropriately disincentivize or deter mutable, but not immutable, traits. Whether discrimination is an effective means of incentivizing behavior is an empirical question, but it is rarely examined as such.⁸⁸ Discrimination may be intended to change behavior by shaming individuals possessing a certain trait.⁸⁹ Whether shaming is generally effective in shaping behavior, as an empirical matter, is disputed and depends on context.⁹⁰ In discrimination contexts, there are reasons to doubt whether adverse treatment of those with mutable traits would be effective in shaping behavior. Rather than giving people incentives to take personal responsibility, an immutability requirement may instead put people to the disempowering task of proving they were victims of circumstances beyond their control.⁹¹ For example, an individual staking a claim to disability benefits must tell a story of misfortune that convinces adjudicators it is impossible for her to work through no fault of her own. And in the process, she must disclaim whatever abilities, competences, and hopes of returning to work she might have.⁹² Additionally, an immutability requirement stigmatizes some traits for which an individual certainly bears some responsibility, leading those individuals to dissemble about their status, conceal the trait, or avoid seeking needed assistance.⁹³

      Apart from these utilitarian considerations, many egalitarians oppose shaming practices as being characteristic of hierarchical relationships.⁹⁴ Shaming penalties have historically been employed to reaffirm class relationships and reinforce the shamed person’s subordinate status.⁹⁵ Martha Nussbaum has distinguished shame, which is about actors, from guilt, which is about acts, arguing that "whereas shame focuses on defect or imperfection, and thus on some aspect of the very being of the person who feels it, guilt focuses on an action (or a wish to act), but need not extend

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